






















































THE HOX. .Mil. AYVAVCVAl, 

. ' f 'it 

IN THE HOUSE OF REPRESENTATIVES, 

> ON THE 

SEMIROLE WAR. 



HOtJSE or REPRESENTATIVES* £ 
January 25. /%Jyy 

In committee of the whole on the state of the Union, 
(Mi*. Pleasants in the chair,) the following* resolution, re- 
ported by the committee on military affairs, together with 
the amendments proposed thereto, by Mr. Cobb , being 
under consideration, viz. 

Resolved, That the House of Representatives of the United 
States disapproves the proceedings iu the trial and execution of 
Alexander Arimthnot and Robert C. Anabrister. 

The amendments proposed by Mr. Cobb, are as fol- 
low : 

Resolved, That the committee on military affairs be in- 
structed to prepare and report a bill to this House, prohibiting*, 
in time of peace, or in t me of war witli any Indian tribe or tribes 
only, the execution of any captive, taken by the army of the 
United States, without the approbation of such execution by the 
President. 

Resolved, That this House disapproves of the seizure of the 
posts of St. Marks and Pensacola, and the fortress of Barrancas, 
omtrary to orders, and in violation of the constitution. 


ltesolvcd , That the same committee be also instructed to pre- 
pare and report a bill prohibiting the march of the arm)’ of the 
United States, or any corps thereof, into any foreign territory, 
without the previous authorization of Congress, except it be in 
the case of fresh pursuit of a defeated enemy of the United 
States, taking refuge within such foreign territory. 

After Mr. Sawyer had closed his remarks Mr. 
Mercer addressed the chair; and, adverting to 
the late hour of the day, moved that the commit- 
tee should rise, in order that he might have it in 
his power to call upon the departments of war 
and of the navy, by a resolution which he read in 
his place, for information on a subject intimately 
connected with the present topic of debate. He 
had been informed, Mr. M. said, that the combin- 
ed attack of a military and naval force of the U. 
States, upon the negro and Indian fort, situated 
on the Appalachicola river, in East Florida, in 
the summer of 1816 , was made without the au- 
thority of the President of the United States. Re- 
garding this as the commencement of the late 
Seminole war, he deemed it proper to obtain 
the information which he sought, in as early a 
stage of the debate as practicable. The com- 
mittee having, however, refused to rise — Mr. 
Mercer proceeded, in substance, as follows : 

The report of the military committee, Mr. Chairman, 
coupled with the resolutions submitted by the honorable 
member from Georgia, (Mr. Cobb) have relieved me 
from much inquietude. Having, before the report of the 
select committee was received, denied the authority of 
congress to punish a military officer, I rejoice that a 
course has been adopted, which, while it falls strictly 
within the province of this house, is calculated to heal 
the recent wounds inflicted on the constitution, and to 
vindicate the nsulted character of the nation. 

I would watch, said Mr. M. with equal jealousy, the 
encroachments of legislative, as of executive power. 
And, aware that the former is least capable of precise de- 
finition, and, therefore, most easily enlarged, could 1 be- 
hold, in die resolutions on your table, an attempt to in- 
vade the rights of any of the other departments or the go- 
vernment, they would meet my most decided opposition. 

Punishment implies responsibility. The responsibility 

of every military officer is to the President o' the United 
♦ * 


3 


States. His responsibility to congress, through the con- 
stitutional medium of impeachment, and through that 
alone. 

But the resolutions before us have for their object 
neither a censure of General Jackson nor of the Execu- 
tive. Pursuing the natural course of legislation, they 
ascertain the existence of a public abuse, and recom- 
mend the application of a constitutional corrective. They 
spring from an enquiry into the conduct of the Seminole 
war, to which the President’s message at the opening of 
the present session called the attention of the house. 
It cannot be forgotten, that, during the two first admin- 
istrations of the federal government, the president, at 
the commencement of every session of congress, met in 
person the two houses, convened together, and pronoun- 
ced the address which his secretary now conveys to us 
in the form of a message. In relation to every part of 
the address, the two houses separately exercised the un- 
questioned right of responding. These responses brought 
into brief review the whole course of administration. 
Ail the political acts and the actors of the past year were 
held open to the scrutiny and opinion of either house. 

Such was the operation given to this government by 
the framers of the constitution, who filled the first con- 
gress which assembled after its ratification. Such con- 
tinued to be its operation for the first twelve years of its 
existence. 

During' the last eighteen years, this practice has been 
disused, but it would be difficult to prove that the pow- 
ers of tiiis house have been abridged, by the substitution 
of the President’s message for his speech. Like the lat- 
ter, the former yet undergoes, at the opening of each 
session, a political analysis ; which terminates in the re- 
ference of every important member of it to some com- 
mittee, charged with the duty of reporting an opinion up- 
on the subject which it embraces, and of recommending, 
if necessary, some correspondent act of legislation. Hence 
the origin of the report which has given rise to the pre- 
sent debate. 

Is it not absurd to imagine, even, said Mr. M. that the 
President of the United States can apprise this house that 
its highest powers have been usurped ; that the constitu- 
tion has been violated — and yet no complaint can be 
made of the usurpation, nor any exertion to prevent jts 
recurrence ? 

The history of our government, Mr. Chairman, is re- 
plete with enquiries analagous to the present. Need I 
remind you of that, into the conduct of the first secreta- 
ry of the treasury ? Of the subsequent enquiry into the 


failure of St. Clair’s expedition against the North WesV 
ern Indians ? Or of the more recent investigation of 
the causes which led to the destruction of the capitol ? 

Were it necessary, these authorities could be corrobo- 
rated by a reference to the long established practice of 
that legislative assembly after which our own has been 
modelled. 

The existence of a power of legislation implies the 
auxiliary authority to inquire into all those abuses or de- 
fects of the laws, which may, by any possibility, call for 
its exercise. 

If, indeed, in the progress of cur present inquiry, the 
character of Gen. Jackson, or of the executive, shall suffer 
in the public estimation, such, although it should prove 
an unavoidable consequence, will not have constituted 
the motives of our investigation. 

Remembering, as I do, Mr. Chairman, with feelings 
common to us all, the triumph of the American arms on 
the plains of New Orleans, 1 need scarcely say, that I en- 
tertain no personal hostility to the commander of our 
southern army. I frankly acknowledge, too, sir, that I 
cannot, in this enquiry, wholly separate the President of 
the United States from the military officer, whose con- 
duct lie lias approved. And yet, it can hardly be requir- 
ed of me to say that I entertain no personal hostility to 
our present chief magistrate. Sir, 1 behold in him the 
friend of my early youth ; a yet more sacred feeling* 
swells my heart — he was, sir, my father’s friend. 

Nor do I entertain any settled hostility to the adminis- 
tration over which he presides. I expressed, beyond 
these walls, a different sentiment, at a time, and under 
circumstances, which prevented its public avowal from 
advancing either my personal interest, or my political 
consideration. 

Still less, sir, have 3 been an enemy of the army, whose 
conduct I am about to investigate. I appeal to the re- 
collection of the house, if I did not zealously, though, in- 
deed, most unsuccessfully, endeavor to preserve to those 
gallant men, who had merited and received the thanks 
of their country, the pecuniary reward of their valor, 
which had been granted to them by the justice, and con- 
firmed to them, as i vainly thought, by the faith cf the 
nation. I, too, Mr. chairman, in a humble path, ardently 
sought to follow their bright example; and the party in 
Virginia, whose political denomination I bear, never 
yielded to their more fortunate opponents, in devotion to 
th e c ommoft w e al t h . 

Sir, the friends of these resolutions are the best friends 


of the 


army. 

•e 


Let the army gain an ascendancy over the 


government, anti It will become an object of jealous}' with 
the people. They will esteem it a smaller evil to disband 
the army; than to surrender their constitution. The a- 
do.p lion of the resolution, is, therefore, essential to the 
preservation of our present military establishment. If 
the resolutions fail, the army ought to be, and will be re- 
duced. 

About to enter upon a wide field of debate, to consult 
numerous authorities and documents, l cannot hope, at 
this late hour, to command the attention of the commit- 
tee, and respect for their comfort, sir, induces me again 
to make way for a motion that the committee rise. 

The ensuing morning Mr. Mercer proceeded. 

Having sought, Mr. chairman, to remove some of the 
prejudices which obstructed my way, and established the 
constitutional power of the house to pass the resolutions 
on your table, 1 shall proceed to enquire into the origin 
and conduct of the Seminole war. In the prosecution of 
this enquiry, l mean to establish the following proposi- 
tions : — 

That tiie constitution of the United States has been vi- 
olated, by an unauthorised war against the Indians of 
East Florida. 

That, it has been farther violated by the unauthorised 
capture of the Spanish fortresses of St. Marks, of Pensa- 
cola, and the Barrancas, during a period of peace be- 
tween Spain and the United States. 

That, the rules of judicial proceeding, established by 
the laws and usages of the United States, in the trial of 
military offences by courts martial, have been disregard- 
ed, in the trial and execution of Arbuthnot and Ara- 
bia ster. 

That, the accustomed clemency of the United States,, 
in all former wars, has been outraged, by the unneces- 
sary execution, in cold blood, of unresisting captives, 
brought within the power of our arms, by the chance of 
war. 

And, lastly, that these accumulated abuses of power 
call not only for the expression of the opinion of this 
house, but for the interposition ofits authority to prevent 
their repetition. 

I find myself arrested, Mr. chairman, on the very 
threshold of my first proposition, by the assertion of one 
of my colleagues, (Gen. Smyth) that the Indians cannot 
wage war ; because, he added, they do not make pri- 
soners of war: while another honorable member (Cob 
X* 


b 


Johnson) who preceded him, on the same side ok the 
question, maintained, that our statute book contains a de- 
claration of perpetual war against all the Indian tribes 
within our limits. Let the statute book answer these 
extraordinary doctrines. The aborigines of this country 
have been our associates, or our neighbors, for more than 
two centuries : and we have maintained towards them, 
during that period, relations of commerce and amity as 
well as of war, by the same means by which we nave re- 
gulated our intercourse with other states. Instead of re- 
curring to the treaty and correspondence of Ghent, al- 
low me to consult the volume which I hold in my hand, 
and to ascertain, from our own intercourse with this un- 
fortunate race of men, in what light we have hitherto re- 
garded them. To ascend no further back than to the 
formation of our Union, the first volume of the laws of 
the United States will afford us Indian treaties, embrac- 
ing every variety of stipulation known in the diplomatic 
intercourse of the most polished nations ; from the arti- 
cles of agreement and confederation with the Delaware 
nation, a treaty of alliance and commerce, concluded at 
Fort Pttt in 1798, down to the articles of agreement and 
capitulation, a treaty of conquest, but of peace, also, con- 
cluded at Fort Jackson in 1814. Indirect contradiction 
of the assertion of my colleague we find, among the in- 
termediate conventions, stipulations for the mutual ex- 
change of prisoners of war ; and, in hostility with the 
doctrine contended for by the honorable member from 
Kentucky, the far greater number of them are treaties 
of peace, promising the oblivion of past injuries, and the 
establishment of perpetual friendship. Nor will a re- 
currence to the history of the United States authorise an 
unfavorable comparison of the good faith of these untu- 
tored savages with that of our more polished European 
allies. With the Chickasaw and Choctaw nations, we 
have made several treaties of boundary, but have had 
occasion to make no treaty of peace, since that of Hope- 
well, concluded two and thirty years ago, under the old 
confederation. The treaty of Greenville, with the North 
Western Indians, endured from 1795 till the battle of 
Tippecanoe,, in 1813. The first treaty with the Creeks 
and Seminoles, concluded with the White Chief McGil- 
vray, in New York, in 1790, was, with the exception of 
some border hostilities with Georgia, of questionable ori- 


gin, and terminated by the treaty of Colerain, in June, 
*1796, preserved inviolate till 1815. Compare these 
dates, sir, with those of our treaties with England, France 
and Spain. Call to mind the repeated violations of these 
‘treaies, and then ask your conscience if it will permit 


7 

you to cast an imputation of bad faith on your savage 
neighbors? 

In ail these treaties, Mr. Chairman, the Indians are de- 
nominated tribes or nations ; they are all negociated and 
sig'ned with the usual solemnity of national compacts, and 
were ratified under the old confederation, as they have 
been under our present constitution of government, by 
the same authority, and in the same manner, as our oth- 
er foreign alliances. In none of them will the least foun- 
dation be discovered for the claim now set up, to regard 
the Indians as the lawful subjects of our government. No, 
sir, the God who gave them being gave them freedom 
too, and, while we have voluntarily promised them pro- 
tection, they have never sworn to us allegiance. 

The treaty of New York, with the Creeks and Semi- 
noles, like that of Greenville, and almost every other ori- 
ginal treaty with the Indian nations in our territory, car- 
ries the recognition of their independence so far as “ to 

• declare that every American citizen who shall attempt 

* to settle within their territory, shall forfeit the protec- 
‘ tion of the United States, and may be punished at their 
‘ pleasure. 5 ’ The guarantees of their reserved territory, 
which distinguish their numerous treaties of peaceful 
cession, are not more inconsistent with their indepen- 
dence, than the celebrated guarantee of our liberty by- 
France was inconsistent with our acknowledged sover- 
eignty ; or our guarantee of her West India Islands with 
their dependence upon the mother country. 

Sir, it is a maxim of experience that, as man acquires 
power, he forgets right. The first of the numerous trea- 
ties to which I have adverted, if compared with the last 
which we have concluded with the friendly Creeks, or 
with the doctrines lately maintained on this floor, will 
furnish a striking illustration of this melancholy, but an- 
cient truth. The former treaty, throughout all its nu- 
merous provisions for the passage of troops — for the tri- 
al of fugitives from justice, and for commercial inter- 
course, not only regards the Delaware nation as a sover- 
eign and independent people, but, after repelling the in- 
si i ation that the United States design to exterminate 
til . , and possess their country, guarantees to them their 
wh e territory, and tenders to them an admission into 
the American Union, . a co-ordinate member of the con- 
federacy. 

There is a doctrine of national law inserted in two of 
our earliest treaties, which is worthy of being held in 
perpetual remembrance. ‘In each of our separate trea- 
ties with the Choctaw and Chickasaw Indians, concluded 
at Hopewell, in 1 786, there is this stipulation, which not 


8 


©lily recognizes the Indian right of war, but seeks to re- 
gulate its exercise, in conformity with those maxims of 
humanity, from which, to the honor of our country, it 
has but recently departed. “ It is understood,” say we 
to these Indian nations, and they to us, “ that the pua- 
‘ ishmentof the' innocent, under the idea of retaliation, 

4 is unjust, and shall not be practised on either side, ex- 
4 cent where there is a manifest violation of this treaty, 
< and then it shall be preceded first by a demand of justice, 
c and, if refused, then by a declaration of hostilities What 
is this but that law of nations so often misquoted or mis- 
applied in the course of this debate ? 

Sir, who are the Indians of East Florida ? Those very 
Seminoles with whom we treated at New York, by their 
white chief, McGilvray, and the wretched Creeks, who, 
refusing- to ratify the treaty of Fort Jackson, fled from 
the bloody field of Talapoosa, to the only asylum left o- 
pen to their retreat. Man has a natural right to live 
somewhere on the earth. A civil war had raged among 
the Creeks ; we united our arms with the weaker party, 
and when victory deolared in our favor, we made a bargain 
with our friends, articles of capitulation for the territo- 
ry of our enemies, and demanded of the former to deli- 
ver up all the prophets and instigators of the recent warp 
whether foreigners or natives, who had not submitted to 
the arms of the United States, if ever they shall be found 
in the Creek territory. They fieri, sir, and with reason, 
to Florida. Did they afterwards return to make war on 
us ?No, sir, the President’s message at the openingofthe 
last session of Congress informed us that we were then 
at peace with all the world. These wretched Seminoles 
and their miserable allies ,■ the fugitive Creeks and ne- 
groes, had not then invaded our frontier. They were 
beyond the limits of the United States, occupying to- 
wards us the relation of an independent people — the re- 
lation under which we had treated whth them for peace, 
at New York and Colerain — and under which, eve, in 
our Spanish treaty of 1795,. we had expressly reserved the 
right to treat again with them for the same object. Tney 
were at peace when detachments of our army and our 
fleet invaded their territory, without the authority, 1 yet 
hope, of the American government; blew up their on- 
ly fortress, and scattered over the surrounding plain 
the burnt and mangled bodies of two hundred and seven- 
ty unoffending Negroes and Indians. Sir, this massacre 
occurred in East Florida, 200 miles from the Georgia 
settlements, and 15 months before it is even pretended 
that these unhappy people had renewed their outrages 
within our territory. Nay, after those outrages did occur. 


9 


the message of the President, as we have seen, announced 
that we were at peace. The seizure of Amelia Island, 
-sir, was justified on the ground that, if the brigands who 
landed there were a foreign power, a secret law of the 
United States, then first published to the world, in order 
to warrant that act, authorized the President to occupy 
the territory in question. But the Indians of East Flori- 
da were not a foreign power, and they were not brigands, 
ns our former treaty with them sufficiently evinces. Their 
right to wage war against Spain herself was as perfect as 
the recognized right of our Indians to wage a war on us. 

Nor had we a rig'ht, either as regarded them or Spain, 
who claimed the sovereignty of their territory, to force a 
passag’e through it, as we did, even had our object been 
peaceable. Is it required of me to establish this princi- 
ple of public law? I shall adduce, for that purpose, but a 
single authority. It is that of a writer who, himself the 
subject of a small principality allied to the free Cantons 
of Switzerland, and claiming the protection of a sovereign 
who. had often to contend for his own independence, has 
applied the maxims of natural reason to the maintenance 
of political truth and justice. “When some petty offi- 

* cers,” says Vattel, “ violated the territory of Savoy, in 
4 order to carry off from thence a noted smuggling’ chief, 

4 the King of Sardinia caused his complaints to be laid be- 
4 fore the court of France, and Louis XV. thought it no 
4 derogation to his greatness to send an ambassador ex- 
4 traordinary to Turin, to give satisfaction for that vi- 
■ 4 olence.” 

44 Since, ’’says the same writer, 44 the passage of troops, 
4 and especially that of a whole army, is by no means a 
4 matter of indifference, he who desires to march his 

* troops through a neutral country must apply for the so- 

* vereign* s permission. To enter his territory i without his 
4 consent , is a violation of his rights of sovereignty and su- 
4 preme dominion.” 44 If the neutral sovereign has good 
4 reason for refusing a passage, lie is not obliged to grant 
4 it.” 44 In all doubtful cases we must submit to the 
'judgment of the proprietor respecting the innocence 
4 of the use we desire to make of things belonging to 
4 another, and must acquiesce in his refusal, even though uc 
4 think it unjust. When the passage is not of absolute ne- 
4 cessitif, -the bare danger which attends the admission of 
‘ a powerful army into our territory may authorize us to 
4 refuse them permission to enter.” 44 Let it not be said, 
4 with Grotius, that he who requires the passage, is not to 
4 be deprived of his right on account of unjust fears. A 


♦ probable fear , founded on good reasons, gives us a rii 
* to avoid whatever mav realize it ; and the conduct 

a' r 


g-h<, 

of 


10 


* nations affords but too just grounds for the fear in ques- 
tion.” “ The Switzers, in their alliances with France, 

* have promised not to grant a passage to her enemies : 

* they ever refuse it to all sovereigns at war, in order to 

* secure their frontiers from that calamity; and they take 

* care that their territory shall he respected.” To this 
doctrine the only exception admitted, is in favor of ur- 
gent and absolute necessity. “ As where an army find 
‘ themselves exposed to imminent destruction, or unable 
‘ to return to their own country, unless they pass through 

* neutral territories, they have a right to pass in spite of 

* the sovereign, and to force their way, sword in hand. 

* But they oug'ht frst to request a passage — to offer secu- 

* rities, and pay for whatever damage they may occasion. 

* Such was the mode pursued by the Greeks, on their 

* return from Asia, under the conduct of Agesilaus.” 

The author here supposes the passage to he for an in- 
nocent purpose; to have been asked of'the sovereign, & to be 
forced, after a refusal, only in a case of extreme necessity.. 

It has not, and I presume will not be pretended, that 
the destruction of the negro and Indian fort near the 
mouth of the Appalachicola, was required by any absolute 
necessity. The Governor of Pensacola, so far from au- 
thorizing the act, expresses his expectation “ that until 
® he receives the decision of his Captain General, no steps 

* will be taken by the government of the United States, or 

* by General Jackson, prejudicial to the sovereignty of 
4 the King of Spain, or the distribt of Appalachicola, a 

* dependency of his government.” It cannot be pretend- 
ed that this hostile measure was taken with the consent 
of the Seminole Indians ; and if, as I hope, it was done 
without the order of the President of the United States, 
it was certainly without any legitimate sanction — the au- 
thority of Congress. 

If the alleged reason for this wanton injustice were 
deemed sufficient to warrant it, “that the fort had be- 
come a refuge for runaway negroes and disaffected In- 
dians,” where would it carry us? With what neighbor- 
ing nation, civilized or savage, could we preserve rela- 
tions of amity ? Will it be pretended that we have a right 
to punish disaffection in those who owe us no allegiance; 
or to recover by violence the persons of our fugitives, 
whether bond or free? The attempt to gloss over this 
cruelty, by the suggestion that the force of the miserable 
negroes was “daily encreasing, and that the fertile banks 
of the Appalachicola were about to yield them evefy arti- 
cle of subsistence,” is calculated to shed additional ho3*~ 
ror over a transaction wanton in its motive, and savage in. 
its execution. A war upon the peaceful negro settle 


11 


meats on the A Vabash would be equally politic, and m 
principle, alike justifiable. 

I have thus traced the Seminole war, Mr. Chairman, tp 
the unauthorised invasion of East Florida in 1816: but 
from thence, to the month of October of the ensuing’ 
year, the terror inspired by this act seems not to have 
produced the usual retaliation of savages, the indulgence 
of private revenge. Along a line of four hundred and 
seventy miles, from the mouth of the St. Mary’s to the in- 
tersection of the Perdido by the 31st degree of latitude, 
we hear, in fact, of scarcely an Indian aggression. The 
destruction of their fort, and the murder in cold blood of 
two of their chiefs, must have inspired the sentiment of 
hostility, but they wanted the means of indulging it. E- 
ven at the moment when the friendly Indians of Fowl 
town, who had preserved their neutrality, during the 
whole Creek war, were assailed by order of the Ameri- 
can General, there had been no invasion of our terri- 
tory by any Indian force. Stories, indeed, sir, have been 
told us of Indian massacres, at the recital of which, my 
very soul sickened; and were it not for the documents ori 
our table, I should believe that the tomaha vk and scalp- 
ing knife had delug'ed our southern frontier with blood. 
But, in addition to the President’s declaration on the 16th 
of November, 1817, that we were at peace with the In- 
dian tribes, I discover. that, with but two exceptions, the 
murder of a family on St. Mary’s river, and of some tra- 
vellers 50 0 miles off in the Alabama territory, transactions 
which I deplore as much as any man, we were ourselves 
the aggressors. The unfortunate detachment of Scott, 
the attack upon which is said to have given a new char- 
acter to the Seminole war, and to have justified the inva- 
sion of Florida, fell a victim to savage revenge, upon the 
river Appalachicola, without the territory of the United 
States. After the destruction of the Indian Fort, in the 
preceding year, was it too much to expect that the Sem- 
inole Indians, would resist the progress of another armed 
force through the bosom of their territory ? Had they to 
consult authorities for the right of self-defence ? They 
recurred to that which nature has stampt upon the hearts 
of all men. Sir, these Indians are represented to have 
been sufficiently powerful to be the objects of our fears. 
They must be regarded as independent of us from our 
own express acknowledgement. Spain asserted that 
they had subveiled her sovereignty ; and, under our con- 
stitution, war could not be waged upon an independent 
neighboring power without the authority of Congress. 
At one moment, indeed, we hear the Indians of East Flo- 
rida styled, wretched savages, outlawed Creeks, fugitive 


slaves. At another, they are represented to be capable 
of bringing a force of 3500 men into the field, a force e- 
qui valent to half our military peace establishment, and 
the most alarming* necessity is plead to justify the infrac- 
tion of the neutrality of Spain in our hostilities against 
them. 

This necessity brings me to the second infraction 
of the constitution by the entrance of Florida, and the 
seizure of the Spanish fortresses of St. Marks, Pensacola, 
and the Barrancas. In regard to the much questioned 
passsage of the line, I have only to add, that, with the 
exception of the right reserved by our treaty of 1795, to 
make peace with the Florida Indians, we have ever re- 
garded the sovereignty ofSpain to be complete over the 
Indian territory within her limits. And the hostile inva- 
sion of that territory is as much an act of war against 
Spain as against the Indians themselves. Being equally 
unauthorised by any act of Congress, it involves a similar 
violation of the constitution. Our attention, however, is 
borne along from the Florida line to less questionable 
infractions of the neutrality of Spain. That the forcible 
seizure of the Spanish fortresses would bean act of war 
against Spain, unless accompanied by some extraordinary 
ustification, is not denied. But, it is defended on the 
ground of necessity, as regards St. Marks ; and, as re- 
spects Pensacola and the Barrancas, for the additional lea- 
sons, that the Spanish governor refused to allow the pas- 
sage of provisions up the Escambia ; and, by a public 
threat, rendered the seizure of those fortresses essential 
to the maintenance of the honor of the American arms. 
This reasoning is further attempted to be sustained by 
reference to the obligations of Spain to restrain, by force 
the Indians within her territory from committing*, it is 
said, hostilities against the United States. 

Allow me, Mr. Chairman, briefly to consider the na- 
ture of this Spanish obligation, which appears to me to 
have been altogether misunderstood. The 5th article of 
the Spanish treaty of 1795 stipulates “that Spain andthe U. 

C( States shall restrain, by force, all hostilities on the 
“part of the Indian nations living within their botmd- 
“ary,” an obligation which is afterwards thus explained — 

“ So that Spain will not suffer her Indians to attack the 
“ citizens of the United States, nor the Indians inhabit- 
C( ing their territory ; nor will the United States permit 
“ those last mentioned Indians to commence hostilities a- 
“ gainst the subjects of his Catholic Majesty, or his Jn- 
“ dians, in anv manner whatever.” The residue of the 
clause prohibits either party from making with the In- 
dians, within the territorial limits of the other, any future 


alliance whatever, except treaties of peace. This sti- 
pulation not only supposes the possibility of future wars 
between the Indians and the contracting* parties, hut as 
the employment of force by either party, to suppress In- 
dian hostilities, against the other, is evidently founded on 
a perfect reciprocity of duty and interest, the interposi- 
tion of force by either, for the purpose of of restraining^ 
the Indians, is expressly limited to the commencement oF 
hostilities . Spain will not permit her Indians to attack, 
that is, to commence hostilities ag’ainst the citizens of the 
United States. But the treaty does not impose upon her 
the unnatural and unreasonable obligation to aid the U- 
nited States, in attacking the Indians, who inhabit her 
territory, and whom she considers under her protection. 
Spain must be regarded as the natural ally of her own 
Indians, but, did this treaty bind her to an offensive and 
defensive alliance with us, against them, either of two 
conditions would release her from the obligation which it 
imposes.* Her inability to fulfil it ; or her incapacity)- to 
do so, without exposing herself to evident and imminent 
danger ; to say nothing of her jright to enquire into the 
origin of our war. When the United States were called 
upon to fulfil their guarantee to France, of her West In- 
dia Islands, we replied that France began the war in 
which slie was engaged with Great Britain. But the re- 
lation of Spain, to the Indians within her acknowledged 
limits, cannot be regarded as less intimate than a defen- 
sive alliance ; and, so considered, the conduct of the 
Spanish Governors of St. Marks and Pensacola falls far 
short of making them associates in the war ; but, if it did 
make them associates, their acts were then acts of war a- 
gainst the U. States, which it was the province of Con- 
gress, and of Congress alone, to resent by war. My hono- 
rable colleague (Mr. Barbour) though he does not con- 
cur in this conclusion, has candidly admitted that the 
Spanish Governors were not associates in the Seminole 
war. Regarded as the allies of th e Indians, if they went 
no farther than to maintain with them their accustomed 
intercourse of commerce and friendship, still, this would 
not constitute them the associates of our enemy. “ The 
contrary principles,” says Vattel, “ would tend to multi- 
“ ply wars, and spread them beyond all bounds, to the 
“ common ruin of nations. It is happy for Europe, he 
“ adds, that, in this instance, the established custom is 
“ in accord with the true principles. Switzerland, in 
“virtue of her alliance with France, furnishes that crown 

'Vattel, page 326. f Vattel, .page 326, 


11 


With numerous bodies of troops, and, nevertheless, 
“ lives in peace with all Europe.” “ The real associates 
“ of rr«y enemy being 1 my enemies, I have against them 
“the same rights as against the principal enemy. But it is 
“not thus, with these nations which assist my enemy, in 
“ a defensive war ; I cannot consider them as his associ- 
“ ates. If I am entitled to complain of their furnishing 
“ him with succors, this is a new ground of quarrel be- 
tween me and them. I may expostulate with them, 
“ and, on not receiving satisfaction, prosecute my 
“ right, and make war on them. But, in tins case, 
“ there must be a previous declaration .” “ Grotius,” 

says Vattel, “ appositely quotes the example of Glyssus, 
“ and his followers — blaming them for having, without 
“ any declaration of war, attacked the Cicouians, who 
“ had sent succours to Priam, during the siege of Troy.” 

And if a previous declaration of war is required, where 
the powers of declaring and waging war are trusted to 
the same discretion, how much more necessary is such a 
declaration, where the constitution of a nation vests the 
power of making the declaration in one department, and 
of conducting its operations in another branch of its gov- 
ernment. 

To have constituted the Governors of St. Marks and 
Pensacola associates in the war, they should have lent 
their whole aid to its prosecution, which is not even 
charged upon them. 

I will now proceed to consider the alledged necessity 
of seizing those fortresses. And, first, that of St. Maiks. 
General Jackson, as early as the 25th day of March, soon 
after crossing the Florida line, announced his intention 
of taking St. Marks “as a depot for his supplies, should 
“ he find it in the possession of the Spaniards, they 
“having 1 supplied the Indians.” That he derived no right 
to take it from the latter use of it, I have already demon- 
strated, and that he derived none from the use which he 
meant to make of it himself, an attention to the local po- 
sition of St. Marks will readily evince. St. Marks is si- 
tuated 104 miles to the northwest of the Suwanee 
to» ns, the main object of General Jackson’s campaign. 
It stands on the bank of the river to which it has given 
or owes its name, and nine miles above its mouth. The 
Fort is surrounded by an open prairie, about two miles 
across, and below it extends an open forest of pine, As 
a military depot, a position below r St. Marks, on the same 
river, would have been more accessible to the vessels, 
which were to furnish supplies from New-Orieans ; and 
the labor of a fatigue party, fora few da} s, would have 
constructed, of the adjacent forest, a protection sufficient- 


15 


ly strong* to. resist the attack of any savage force which 
could have threatened the safety of the position. Such 
is the necessity, on which this infraction of neutral right 
is grounded. The Spanish fort deriving its supplies, also, 
from the water, would have been dependant on the A* 
merican, and the danger of an Indian attack, which threat- 
ened St. Marks, before the arrival of the American army, 
had ended with its approach'. Nor is it the least extenu- 
ation of this unauthorized act of war, that discoveries 
were made, after the capture of the fort, which evinced 
that its commander was unfriendly to the American 
arms. The antecedent act should be tried by its own evi- 
dence. The subsequent discoveries, if they amounted to 
any thing, constituted, as I have remarked, a cause of 
war against Spain, which General Jackson had no right 
to declare, or to wage, without a declaration. 

St. Marks was more than a hundred miles from the Su- 
wanee towns. To reach Pensacola, it was necessary to 
march across West Florida one hundred &fifty milesfurther 
from the principal theatre of the war. The necessity, 
however, which urged the occupation of the capital of 
West Florida is, if possible, less apparent than that which 
was plead for the seizure and occupation of St. Marks. 
The defeated Indians had retired down the Peninsula of 
Florida, or crossed over it towards St. Augustine. Fort 
Gadsden and the Appalachicola river, to say nothing of 
St. Marks, then in our possession, cut off their retreat 
upon Pensacola. Above Pensacola itself, on the Canuco, 
a branch of the Escambia, Fort Crawford served as a 
check upon the Indians in that vicinity, and 50 miles from 
this last position stood the American fort Montgomery, 
on the Alabama. The desart country between the Ap- 
palachicola and the Bay of Pensacola contained neither 
Spaniards nor Indians ; yet, on the 5th of May, after hav- 
ing discharged a part of his force, and proclaimed the 
war to be at an end, General Jackson announces to his 
government his intention to occupy Pensacola, if certain 
reports, which he had heard, should prove true, while the 
whole tenor of his letter of that date evinces a determination 
to occupy it at all events. He expresses it to he his con- 
firmed opinion, “that, so Jong as Spain has not the power 
4 or will to enforce the treaty, by which she is solemnly 
4 bound to preserve the Indians within her territory at 
4 peace with the United States, no security can be given 
4 to our southern frontier, without occupying a cordon 
4 of posts along the sea shore. ” After the seizure of 
Pensacola, he enforces the same reasoning, in an argu- 
ment in favor of its restoration. 

In Ills preceding letter to the Secretary of War, of the 


10 


25th of March, he informs him, “that, finding it very 
‘ difficult to supply Fort Crawford, on the Canuco, by 
4 land, he had ordered the supplies for that garrison by 
4 water” up the Escambia, that is, by Pensacola, and 
through the Spanish territory : and that he had “ writ- 
4 ten to the governor of Pensacola, that if he interrupts 

* them during the present Indian war, he shall view it as 
4 aiding the enemy, and treat it as an act of hostility,” In 
his letter to the Governor, written on the 23d of May, the 
day before he ent red Pensacola, he tells him, “that, by 
4 a reference to my communications of the 25th of March, 

4 you will see how far I have been the aggressor in the 
4 measure protested against. You are there, (he adds) 
‘ distinctly advised of the objects of my operations; and 

* that every attempt, on your part, to succor the Indians, 

4 or prevent the passage of my provisions in the Escam- 
4 bia, would be viewed as hostile acts on your part.” Re- 
jecting the vague reports, mentioned in his letter to the 
Secretary of War, of the assemblage of the Indians, in 
force, in the vicinity of Pensacola, General Jackson here 
evidently rests his authority to seize Pensacola on the 
ground which lie had assumed on entering Florida, of 
the necessity of supplying Fort Crawford with provisions, 
by a passage through the territory of Spain, and the 
right to consider the refusal of that passage as an act of 
hostility . In his letter to the same officer, of the 27th of 
April, he, in fact, assumes the prerogative of declaring 
war: “America,” he writes, 44 just to her treaties, and 
4 anxious to maintain peace with the world, cannot, and 
4 will not, permit such a savag’e war to be carried on in 
4 disguise any longer. Asylums have been granted to the 
4 persons and property of an Indian foe, fugitives from 
4 the territory of the United States. Facilities, deemed 
4 by me necessary to terminate a war, which, under ex- 
4 isting treaties, should have been maintained by Spain, 
4 for feeding my troops, and liberating the subjects of 
4 Spain, imprisoned by the Indians, have all been denied 
4 by the officers of his Catholic Majesty. All these facts 
4 prove the unjust conduct of the Spanish agents in Flo- 
4 rida. It cannot longer be tolerated ; and, although a 
*' republic, fond of peace, the United States know her 
‘ rights, and, at the expense of war, will maintain them 

In deciding* upon the necessity of supplying Fort Craw- 
ford with provisions, by the Pay of Pensacola and the 
Escambia, the committee must be already struck with the 
Tang’uage in which General Jackson himself describes it. 
Finding it very difficult to supply Fort Crawford, on the 
Canuco, by land, he resolved to supply it by water. Here 
is no necessity — none that could justify the consideration 


of a refusal to permit the passage of provisions throng'll a 
neutral country, as an act of hostility. Most truly does 
General Jackson speak of the difficulty only of obtaining 
the supplies by land; and in his letter to the Governor of 
Pensacola, in which he apprises him, that he lias ordered 
a supply of provisions to be sent from New Orleans, by 
way of Pensacola, to Fort Crawford, on the Canuco, he 
adds, that this route lias been adopted, as the most speedy 
one of provisioning one of ids garrisons. 

Sir, when you cast your eyes on the map near you, and 
recollect that part of the supplies of Fort Scott, on Flint 
rh er, were obtained from Fort Montgomery, at the dis- 
tance of many hundred miles; and when you perceive 
that the river Alabama connects the latter with the port 
of Mobile ; that from Fort Montgomery to Fort Crawford 
there is a public road, of 50 miles only in extent; you 
will readily comprehend the nature of that necessity urg- 
ed, not by General Jackson, but by his friends in this 
House, and especially by one of my honorable colleagues, 
(Gen. Smyth) as a justification of the seizure of Pensaco- 
la. But, if the land carriage of 50 miles, for the provi- 
sions required to supply a garrison, consisting of 100 men, 
was a serious impediment to the military operations of 
General Jackson, allow me to point out another channel, 
which would reduce this transportation, by land, to half 
that distance. The Perdido river, l am warranted, by an 
honorable ifeleg’ate in this House, in representing' to be 
navigable to ihe Florida boundary, in boats drawing less 
than 18 inches water, and from a point on that river, op- 
posite Fort Crawford, the distance over land is but 25 miles. 

But, let the difficulty of obtaining supplies for Fort 
Crawford by any other channel than the Escambia be 
magnified to any extent, did the Governor of Pensacola 
refuse to grant the request of Gen. Jackson ? No, sir, 
the complaint of such refusal is reduced, at last, to the 
narrow ground, that exorbitant duties are charged on the 
entry of the provisions at Pensacola. The whole neces- 
sity, therefore, is resolved into the expense of paying 


those duties. 


Sir, 


the resources of the U. States do not 


require, that, to save the duties, however exorbitant, 
(and their amount is no where stated,) upon the provi- 
sions necessary for the supply of one hundred men, the 
sovereignty cf an independent nation should be trampled 
under foot. But, even this plea for occupying Pensacola 
is finally removed, by a letter of the Governor to Gen. 
Jackson, dated six days before its seizure, in whic: lie 
says, “ that, with respect to the passage of provision > up 
* the Escambia, 1 have not hitherto prevented it, Aiiu/’ 


2 *. 


18 


lie proceeds, “ now that the free commerce of this people 
‘ with that of the interior is declared admissible, by high- 
4 er authority, there will in future be no difficulty in ah 

* lowing- the merchants to transfer from hence to Fort 
4 Crawford, and other forts on the frontier, as well by 
4 water as by land, whatever provisions and effects they 

* may need or desire , by which means these posts will 
‘ readily be provisioned, and your excellency will be sa- 
4 tisfied.” Not so, however; Gen. Jackson had advanced 
too near his object to be thus diverted from it; and 
as the necessity of occupying- Pensacola, in order to en- 
sure the safe transportation of his supplies, had ceased 
altogether, anew reason occurs to sanction the measure, 
44 On my march, on the 23d of May,” says the general, in 
a letter to the Secretary of War of the 2d of June, 44 a 

* protest from the Governor of Pensacola was delivered 
f to me by a Spanish officer, remonstrating, in warm terms, 
4 against my proceedings, and ordering me and my forces 
4 instantly to quit the territory of his Catholic Majesty , with 
( a threat to apply force, in the event of a non-compliance .” 
This, adds the general, was so open an indication of a 
hostile feeling on his part, after “ having been early and 
4 well advised of the object of my operations, that I he- 
4 sitated no longer on the measures to be adopted. I 

* marched for, and entered Pensacola, with only the show 
4 of resistance, on the 24th of May.” Sir, let us examine 
the language in which this threat was couched, and as- 
certain whether it was of the character described by 
Gen. Jackson, cr of such a character that the honor of 
the army required it to be resisted by the seizure and 
occupation of Pensacola and the Barrancas. 44 It having 
4 come to my knowledge,” writes Gov. Mazot, “ that you 
4 have passed the frontiers, with the troops under your 
4 -command, and that you are within the province of West 
4 Florida, which is s biect to my government, I solemnly 
4 protest against this procedure, as an offence towards my 
4 sovereign, exhorting you, and requiring of you, in his 
''named retire from it ,as,if'ou do not, & co? tlnue your aggres- 
*sions, ] shall repel force by force.” To which he adds, “as the 
‘repeller of an insult has never been deemed the aggressor 
‘you will be responsible both to God and man for alt the fa- 
< tal consequences which may result.” Ss this an order 
to Gen. Jackson and his force “instantly to quit the terri- 
tory of Spain, with a threat to apply force in the event of a 
yioncompliar.ee ?” If you do not , and continue your aggres- 
sions, I shall , said the Governor, repel force by force. 
What f rce l The entry into Florida. That occurred 
vein early in March ; and this protest is . dated on the 
34th of Mav, though doubtless written on the 23d, for 


■19 


the aid of Gen. Jackson certifies that it was received, on 
that day, from a Spanish officer, who met the American 
army on its march, shortly after it had crossed the Es- 
cambia river; and, consequently, when General Jackson 
was within a few miles of Pensacola. 

Neither the object of the American commander, nor 
the nature of this threat, could then be mistaken. It was, 
that, if Gen. Jackson continued his aggressions , by attack- 
ing* Pensacola, force would be repelled by force. In the 
Governor’s letter from the Barrancas, of the following* 
day, you have his explanation of this threat. “ Your ex- 

* cellency,” he writes, “ lays to my charge the blood 

* which may be shed bv my refusal to deliver up the pro- 
e vince, as your excellency requests, which I shall never 

* do, nor can I, without covering* myself with dishonor at 
‘ the close of my life and of my long military career, I 

* am firmly 7 persuaded your excellency would, in my case, 
‘ do the same, as you would not venture to stain the ho- 
4 norable laurels with which you are adorned. I expect, 
4 from the generosity of your excellency, first, that you 
f will set the officers and troops that garrisoned Pensa- 

* cola at liberty, and that, after supplying your army with 

* provisions, you will shortly evacuate the territory of this 

* province, and not carry on a partial war against West 

* Florida at a time when our nations are in profound 
‘ peace. Finally,” he adds to this conciliatory letter, “if, 

* contrary to my hopes, your excellency should persist 

* in your intention to occupy this fortress, which 1 am 
6 resolved to defend to the last extremity, 1 shall repel 

* force by force ; and lie who resists aggression can never 
‘ be considered an aggressor.” 

In the subsequent proceedings of Gen. Jackson, a more 
striking illustration is offered of the extent to which his 
conduct was influenced by this threat. Not satisfied with 
the seizure of Pensacola, without resistance, he proceed- 
ed fourteen miles below it, invested, and, after a heavy 
cannonade of many hours, took the fortress of the Ba- 
rancas and the Governor, by capitulation. Nor did lie 
stop here ; but, regarding the Spanish troops as prison- 
ers of war, and all West Florida as a conquered country, 
he shipped the former to the Havana, and usurped over 
the latter the civil, as well as military, administration. 
One of my honorable colleagues has, with singular fe- 
licity, offered the same apology for these defensive mea- 
sures of the American commander which he allows to 
the Emperor of France for subverting the Prussian mo- 
narchy. The honor of the French arms required that a 
threat should be repelled ! Sir, the force of the argument 


will appear very nearly the same, in both cases, when 


so 


ference is had to the relative strength of the combatant^; 
but tliere is th s remarkable difference between the Em- 
peror of France and Gen. Jackson, that the former 
was the acknowledged sovereign of France, and the 
latter had merely usurped the authority of Congress 
to make war upon a foreign state. Whether Gen. Jack- 
son’s conduct was in obedience to his orders, as my lion, 
colleague (Gen. Smytli)has so earnestly & ingeniously main- 
tained, is a question between him and the authority from 
which he derived them, except so far as regards the per- 
nicious example of military insubordination, which is af- 
forded by the impunity of this act. But my lion. colleague will 
be sensible, on mature reflection, of the embarrassment 
to which he exposes himself when he seeks to get rid 
of the express limitation contained in the order of the 
16th of December, not to attack the Seminole Indians 
should they shelter themselves under a Spanish fort, but 
to notify the Executive of the fact. My colleague lias 
contended, that, as the Indians never did seek shelter 
under the walls of a Spanish fort, this order should be 
construed as if the limitation which it contains had con- 
stituted no part of it. In other words, although Gen. 
Jackson had no authority to attack a Spanish fortress, 
which protected the entire army of our enemy, he had 
a right to attack such fortress without any such provoca- 
tion or necessity. Sir, in relation to these orders, it is 
proper to remark, that, departing from military usage, 
the government assigns to the officer charged with their 
execution, reasons for the restraints which they impose 
on his authority. “ The state of our negociations with 
( Spain, and the temper manifested by the principal Eu- 
3 ropean powers, make it impolitic, in the opinion of the 
‘ President, to move a force at this time,” fourteen days 
only before the order which I have quoted, “ into the 
Spanish possessions, for the mere purpose of chastising 
‘ the Seminoles for the depredations which they have 
5 heretofore committed.” And if policy required this ab- 
stinence, what shall be said of the seizure of the capital 
of West Florida when, these Indians had been chastised, 
and all the professed objects of the invasion of their ter- 
ritory attained ? Such, sir, was the exposition given of 
1 i • s orders by the President himself, in announcing to 
Congress that lie had authorized the American army to 
cross the Florida line; and, notwithstanding his refusal 
to censure Gen. Jackson for disobeying them, such must 
have been the construction given to them, by the Presi- 
dent, when, on the 14th of August last, he ordered the 
restoration of the conquered posts and territory to Spain. 
Much, Mr. Chaitfmain, has been said, in the course c-£ 


Si 


this debate, of the motives which induced the American 
commander to depart from his orders. An hon. colleague 
of mine, (Mr. Barbour) while he has asserted, that necessity 
would have justified Gen. Jackson, has admitted, although 
he means to vote against the resolutions on your table, 
that there existed no such necessity for seizing* either 
St. Marks or Pensacola. He has told us, that there are 
degrees of the necessity which would warrant the seizure 
of a neutral fortress by a military commander. Sir, ne- 
cessity, which is without law, can know no degrees : 
and my honorable colleague might as well attempt to re- 
solve duration into time, or infinity into space, as such 
necessity into deg’rees. With the motives of Gen. Jack- 
son, except as they illustrate his acts, this House have 
nothing to do. The conformity of those acts to the con- 
stitution of the United States, is the subject of our pre- 
sent enquiry. We are in the hall of the representatives 
of the people, asserting their rights, to have the consti- 
tution administered according to its true spirit. The 
course of argument of my colleague would be strictly 
pertinent on an indictment for murder. He might 
reduce the offence to manslaughter, or to excuseable 
homicide. Our present purpose is not the trial of a pub- 
lic offender, but the maintenance of our own constitu- 
tional powers. Sir, the very worst acts have been done 
with the very best motives. Political and religious en- 
thusiasm have at times subverted the fairest constitu- 
tions of government, and shrouded Religion herself in 
hloodi I repeat it, sir, I look, in this inquiry, to higher 
objects than the character and motives of Gen. Jackson — 
to our constitution and laws — to the character and genius 
of the American people. 

The doctrines of our opponents, on this question, are 
more alarming, if possible, than the acts which they seek 
to justify or to excuse. If, as my honorable colleague 
contended, who addressed the committee some days ag'o, 
(Gen. Smyth) a declaration of war is nothing more than 
“ a recognition that war exists what becomes of the 
constitutional authority of Congress — of all the restraints, 
which the constitution has sought to impose on ambition, 
improvidence, and corruption, by vesting the power of 
declaring war in the representatives of the nation ? The 
examples derived from the practice of other nations, a- 
mong whom declarations of war, it is remarked by Vattel, 
have fallen into disuse, are inapplicable to us, because 
they are inconsistent with the genius of our free con- 
stitution. 

Alike extraordinary is the conclusion of my colleague, 
that, because the President is charged with the execution 


of oar laws, and treaties are the supreme law of the land* 
he may execute within the territories of Spain the pro- 
visions of a Spanish treaty ; or the yet more extraordinary 
doctrine that all the powers of this government, which 
may at any time be exercised beyond the limits of the 
United States, are concentered in the hands of the Presi- 
dent. This committee will pause before it sanctions doc- 
trines, alike subversive of the independence and laws of 
other nations, and of the theory and maxims of our own 
constitution. 

There is one objection urged to the adoption of the 
resolutions, which 1 deem it proper to notice before I 
quit this branch of my enquiry. It has been said by our 
opponents, that, without intending it, we are throwing 
the weight of our opinionsin tiie scale of a foreign nation, 
between whom and our government a negoclation is de- 
pending, which involves questions of great importance 
to the public prosperity. 

On the other hand, several lion, gentlemen, on the 
same side of this question with myself, seem to have re- 
garded it, as a duty to themselves, to disavow the direc- 
tion thus given to their arguments, and to express senti- 
ments bordering, at least, on hostility to Spain. 

Allow me, also, Mr. Chairman, to say, that, although 
Spain, in my opinion has given us ample cause of war, I 
am decidedly opposed to a declaration of hostilities a- 
gainst her. We claim, I understand, as our western 
boundary, the territory west of the Mississippi, as far as 
the Rio de la Norte. If by treaty it is ours, let it be occu- 
pied by our arms; and having taken possession of that 
which belongs to us, let us tender to Spain the exchange 
of that part of it, adjacent to her Mexican possessions, 
for Florida, which she does not want, and which would be 
to us, of great value. If she shall now reject this propo- 
sition, the time must speedily arrive when she will per- 
ceive it to be her interest to accede to it. So far w ould 
I go, and no farther. Not from any apprehension of the 
power of Spain, but for reasons of policy, too obvious to 
require to be enforced. A war, even with Spain, would 
cripple that commerce, on the prosperity of which mate- 
rially depends the future growth of our yet infant navy. 
In such a war, we would have to contend, not with Spain 
alone, but to encounter, under the disguise of a Spanish 
flag, the enterprize and resources of France, of England, 
and, I greatly fear, of some of the most abandoned of our 
awn citizens. 

Having, Mr. Chairman, consumed so much of the time 
of the committee on the first propositions, which I propo- 
sed to sustain, 1 shall pass, with more brevity, over the 


last, which involves the character rather than the consti- 
tution of our government. In the enquiry whether the 
rules of judicial proceeding in the trial of military offi- 
cers have been wantonly disregarded in the trial and ex- 
ecution of Arbuthnot and Ambrister, an unexpected dif- 
ficulty is started by our opponents, who question wheth- 
er the special court which tried them, was a court martial 
or a mere board of officers!* It has not sufficed, it seems, 
that General Jackson informed the Secretary of War 
“ that Arbuthnot and Ambrister were tried under his 01 ~ 
“ders by a special court of select officers, legally convict - 
tc cd; legally condemned; and most justly punished or, 
that he calls the court a court martial wherever he speahs 
of it, whether in his letters or his general orders. His friends 
acknowledgingtheirutterincapacity to defend him, on his 
o w n gr oun ds, p e rsi st i n de n o m i n ati n g' th e c o u rt a m e r e b oar d 
of officers. Its proceedings, they regard as subject to no 
legal restraint; its judgment, as mere counsel or advice, 
submitted to the discretion of the General, to be altered 
or xtended, at his mere pleasure. Is their view then, 
sir, correct? Were Arbuthnot and Ambrister tried bv a 
court martial, or merely examined by a board of officers? 
A court martial is either a general court for the trial of 
all offences whatever, or a regimental or garrison court 
for the trial of offences not capital. The former must 
consist of five, and may consist of thirteen officers. The 
latter cannot exceed three. A prisoner was here sen- 
tenced to death, and the assemblage of officers who •sen- 
tenced him to that punishment consisted of thirteen; it 
was, therefore, either a general court martial, or no court 
at all. A general court martial is required by the rules 
and articles of war to consist of “ any number of commis- 
sioned officers from five to thirteen ; but it shall not con- 
sist of less than thirteen, where that number can be con- 
vened without manifest- injury to the service.” The 
court which tried Arbuthnot and Ambrister consisted of 
thirteen officers, with a supernumerary appointed to act, 
in case of unforeseen absence, or incapacity of any one 
of that number. A general court martial is required to 
have a judg’e advocate, whose duty it is to administer to 
the officers the oath prescribed by the 69th article of 
war, and to act ;ve counsel for the accused as well as the 
court. The court which tried Arbuthnot and Ambrister 
had a judge advocate, who administered the oath requir- 
ed by law, and interrogated the witnesses. The prison- 
er may challenge any member of a general court martial 
appointed to try him. Arbuthnot and Ambrister were 
called upon to exercise this privilege. The prisoner be- 
fore a court martial is regularly arraigned upon charges 


34 

smd specifications filed against him. So were Arbuthnot 
and Ambrister. He is entitled to counsel if he requires 
It. Arbuthnot made application for counsel, and counsel 
was allowed him. A court martial sits with open doors, 
except when it decides a question; and then, the doors are 
closed. So proceeded the court which tried these pri- 
soners. A court martial has only a limited jurisdiction 
both as to offences and persons. So this court decided, 
for, of the 3d charge and specification against Arbuthnot, 
the court decided, t£ upon the suggestion of a member, af- 
ter mature deliberation, that it had no jurisdiction.” A 
court martial can sit, unless by express permission from 
the o fficer creating* it, only be! ;een certain hours of the 
day. This court was by order allowed to sit without re- 
gard to hours. In the organization of a general court 
martial, the members are seated alternately, according 
to rank, on each side of the President. So was this court 
arranged. A court martial records, along with a minute 
of its proceedings, all the testimony laid before it. So did 
this court. It is its special province to decide on the 
guilt or innocence of the accused, and on the punishment, 
if any, which shall be inflicted upon them. So was this 
court required to do, and so it did. A general court mar- 
tial is required to pronounce upon every charge and spe- 
cification exhibited against a prisoner. This court obeyed 
this requisition by acquitting the prisoner, Arbuthnot, of 
being a spy, and responding to all the charges & specific 
cations against him except that, of which they disclaimed 
any jurisdiction. A general court martial cannot sentence 
a prisoner to death without the concurrence of two-thirds 
of its members. A concurrence of two-thirds of the 
court is here certified. 

It was a general court martial, convened in virtue of age- 
neral order, “ for the purpose of investigating the charges 
* exhibited against Arbuthnot and Ambrister, and such 
t others, similarly situated, as might be brought before it.” 
It is, therefore, denominated, by Gen. Jackson, “a special 
•court.” All its proceedings were approved by Gen. Jack- 
son ; and his approval showed that his order had not 
been disobeyed. And yet, had this been a board of offi- 
cers, they would not have presumed to make exception 
to their own jurisdiction over any matter, upon which, 
their opinion was asked by the commanding general ; 
nor would they have invited the prisoner to challenge 
any one of their number. A supernumerary officer would 
not have been appointed ; their proceedings would not 
have been with open doors; a concurrence of two thirds 
would not have been required to be certified ; nor would 
an extension of their hours of sitting, by a general or- 




der, have been at all necessary. Conforming inso many par- 
ticulars to the articles and usages of war, it is to be greatly 
deplored that this court martial, and the general who con- 
vened it, departed from both in the most important essen- 
tials of justice. For neither the articles of war, nor the trea- 
tises on courts martial, authorised the trial of Arbuthnot or 
Ambrister,by the court which tried them. “F or the persons’* 
says Macomb, “who are subject to the military laws of the 
“ United States, and amenable to be tried by courts mar- 
“ tial, are all persons who are commisssioned, or on pay, 
“ as officers, or who are enlisted, or in pay, as non-com- 
“ missioned officers, or soldiers. All sutlers arid retain- 
et ers to the camp, id all persons whatsoever, serving 
“ with the armies ol me United States in the field, though 
“ not enlisted soldiers, all military store-keepers, com~ 
“ missaries, military agents, surgeons, surgeon’s mates, 
<( paymasters, quartermasters, chaplains ; all officers, 
“ conductors, gunners, matrosses, drivers, or other per- 
u sons, whatsoever, receiving pay or hire in the service 
“ of the artillery or corps of engineers of the United 
“ States, and all officers and- soldiers of any other troops, 
“ whether militia or others, being mustered and in pay 
“of the United States, when acting in conjunction with 
“ the regular forces,” and, by a special act of Congress, 
t( all spies.” 

In this enumeration of persons subject to the cogni- 
zance of an American court martial, a search will be 
made in vain for a description corresponding with Ar- 
buthnot and Ambrister, after the former had been ac- 
quitted of being a spy. Even where a particular offence 
is cognizable by a court martial, the character “ of the 
“ person determines whether it may be tried by a civil 
“ or military tribunal. The harboring' or concealing 
“ of deserters is a civil, or military offence, according' to 
“ the state or quality of the person who commits it.” 
If by a soldier, it may be tried by a court martial, if by 
a citizen, a law of the United States expressly provides 
that it shall be tried by a civil court. The same 
doctrine is established by the constitution, which pro- 
vides, “that no person shall be held to answer for a ca- 
“ pital, or otherwise infamous crime, unless on a present- 
“ ment or indictment of a grand jury*,* except in cases a- 
“ rising in the land or naval forces, or in the militia, when 
“in actual service, in time of war or public danger.” 

But the mode of trial was not less exceptionable, than 
the jurisdiction of the court. The proceedings of \he 
court are marked, alike, by the exclusion of competent 

o 

t> 


testimony offered by one of the accused ; and by the ad 
mission of incompetent testimony against him. The fol- 
lowing' rules of evidence are laid down by the best Ame- 
rican author on this subject, an author to whom the 
committee has referred us, as in common use, and who is 
known to this house, from having' received its thanks for 
his distinguished gallantry. “ The evidence,” says Ma- 
comb, 44 on trials by court martial, is the same that is re- 
quired in civil prosecutions.” 

“ In all cases, where a party would avail himself of the 
44 incompetency of a witness, on account of his convic- 
“ tion of a crime, it is necessary that he should produce 
“ to the court the record of conviction, or a sufficient 
“ proof of it.” Yet, before any trial, the testimony of 
Ambrister was rejected as incompetent, when offered by 
Arbuthnot, in his defence. 

“Letters of correspondence and all familiar writings 
44 must be proved, upon oath, to be written by the per- 
“ son, of whose hand writing they are alleged to be.” 
Yet, the letters ascribed to Arbuthnot are received as evi- 
dence, without a shadow of proof. For the author, from 
whom this evidence is quoted, also adds, “ that even the 
5< comparison of hand writings, though it may be usefully 

employed in the detection of forgery, is no evidence to 
44 authenticate any writing whatever, as evidence, in a 
4 criminal prosecution.” 

44 An attestation of a witness must be only to what he 
“actually knows, from his own observation of the facts 
44 in issue. lie is not to be examined as to what he has 
44 heard, or been informed of by r others, for his testimony 
“ being', in that case, a reference to the information of a- 
44 notlier, who is not upon oath, is no evidence at all.” 
Yet, in the case of Arbuthnot, the hearsay evidence of 
Indians, who, as the report of the select committee just- 
ly remarks, would not have been competent witnesses, if 
present, is received by the court. 

“Facts are the subjects of evidence, not opinions .” It 
is, therefore , 4 to the truth of facts that evidence is regu- 

* larly broug'ht, and, to form opinions of these, is the pro- 

* vince not of the witness, but of the judge or juror who 
4 is to decide them. No party, therefore, in a trial, is 

entitled to obtrude the opinions of a witness uponHhe 
4 court, or to call upon a witness to answer questions of 
opinion ;” yet a witness, Hambly, a Spanish renegade, 
the personal and open enemy of the prisoner, is ex- 
pressly and repeatedly invited by the court, on the trial 
of Arbuthnot, to give his opinion of the prisoner’s 
guilt or innocence. 

But, admitting the prisoners to have been legally trted 


by a court of competent jurisdiction, ancl legally con- 
demned, the execution of Ambrister was in defiance oi 
the sentence of the court, and a mockery of its authority. 
An hon. colleague of mine(Gen. Smyth) has contended that 
there were two sentences in the latter case, ^justifies the 
approval of the first, which condemned the. prisoner to^ 
death, because the last was illegal. “ The judgment of 

* a court martial is always under its own control,” says 
‘ Macomb, “ until it is communicated to the officer by 

* whom it is convened.” In this case, the first judgment 
was re-considered. The re-consideration restored the 
court and ti)e prisoner to the same situation in which 
they had stood before any sentence whatever was 
pronounced ; and the final judgment was, there- 
fore, the only judgment of the court. This judgment 
sentenced the prisoner to be whipped and to hard labor. 

General Jackson “disapproved the re-consideration — » 
•approved the finding and first sentence of the court, and 

* ordered Ambrister to be shot.” Had he authority to 

do so ? “ With the appointment or constitution of the 

* court martial,” says the high authority I have already 
quoted, <f the power of the officer over the prisoner, 

* ceases until that court shall have pronounced judgment. 

* The President of the United States, or General, can no 
s more interfere with the procedure at courts martial, in 
1 the execution of their duty, than they can with any of 

* the fixed courts of justice; nor even after the court 
‘ martial has pronounced its sentence, is it in the power 

* of the President, General, or other officer ordering the 
‘ court, to add to or alter that sentence in any one parti- 
‘ lar, unless a recommendation to that effect shall be 

* therein contained. The President or commander in 

* chief, in virtue of his prerogative of mercy, may entire- 

* ly remit the punishment which the court has awarded, 
c or, by disapproving the sentence, he may order the 

* court to sit again, and to review their proceedings and 
‘ judgment ; but he can no more decree any particular 
‘ alteration of their sentence, than he can alter the judg- 
ement of a civil court, or the verdict of a jury.” Ar- 
buthnot and Ambrister were, therefore, tried by a court 
of incompetent jurisdiction--the former was condemned 
upon illegal evidence, and the latter executed by order 
of the commanding general, in defiance of the judgment 
of a court of his own appointment; all of whose proceed- 
ings lie approved, except their single act of mercy, the 
reconsideration of their sentence against Ambrister. 

The general order of the 29th of April, commanding 
the immediate execution of Arbuthnot and Ambrister, un- 
eondemned even to this day, nay, more than tacitly approx 


&3 


veil* is, Mr. Chairman, a stain on the records of the judi- 
cial proceeding's of this nation, to the insecurity of the 
honor and life of every o nicer and soldier of the armies 
of the United States, and of every citizen of America, who 
may be leg-ally, or otherwise, subjected to the judgment 
of a court martial ; a proceeding which imperiously calls 
for the interposition of the authority of Congress, in order 
that, instead of being- converted into a precedent for fu- 
ture imitation, it may be shunned as an object of abhor- 
rence. Sir, it is no little cause of alarm to behold the. 
highest military court of criminal justice, which should 
he the shield of innocence, converted into a rod of oppres- 
sion. While I listened with equal attention and delight 
to the eloquent and able argument of my honorable friend 
from New York, 1 thought that even he underrated the 
security which a military courtis designed to afford to an 
innocent prisoner. I thought he supposed that a milita- 
ry judge was not sworn to discharge the duties of his of- 
fice with fidelity and impartiality. [Mr. Storrs arose to 
explain. He had remarked, he said, that the charges 
were not sworn to, on which a prisoner was arrested.] I 
misunderstood my honorable friend, said Mr, Mercer ; but 
even here, the charge must be sanctioned by the honor of 
an officer. A general court martial derives its appoint- 
ment from the sound discretion of the highest military 
authority in an army : its sentence is inoperative until it 
receives his approbation ; and any officer who should 
seek, by the instrumentality of such a court, to gratify 
secret resentment or malignity, would render himself 
odious to his whole corps. 

The ingenuity of my hen. colleague (Gen. Smyth) will 
in vain attempt to discover an analogy between this trial 
and any event in the judicial history of this nation. The 
board of officers who reported Major Andre to be a spy, 
were not constituted a court martial, but if they had been, 
their sentence was not disregarded. The gentleman 
will turn in vain to the annals of the revolution for a pre- 
cedent to extenuate the enormity of this whole proceed- 
ing-. We have been asked, “ whence this sympathy for 
<e two British prisoners ?” Sir, my sympathy is not 
with them, blit with our violated laws. The people have 
seated us by the fountain of justice, and charged us to 
preserve its purity from contamination. Extraordinary 
and alarming as are the doctrines of martial law, maintain- 
ed in this debate, there is yet some consolation in per 
ceiving that our opponents have deemed it necessary to 
take a double ground ; & lest the judgment of the court 
martial should not sustain the execution of the prisoners, 
they have resorted to tfie broad yig'ht of retaliation — 


which brings me to the last proposition that I undertook 
to maintain — that the accustomed clemency of this na- 
tion, manifested in all former wars, has been disregarded 
in the late Seminole campaign, by the execution 111 cold 
blood, of unresisting' captives subjected to our arms by the 
chance of war. Without enquiring into the manner in 
which the two Suwanee chiefs were decoyed into our 
grasp by the use of the British flag-, or Arbuthnot was dragg- 
ed from beneath the protection of the neutral hag* of 
Spain; acts which, coupled with the succeeding tragedy, 
imbue its closing scene with deeper horror, I utterly 
protest against the application, which has been made of 
the exploded usag'es of war, to justify these barbarities. 
Nor will 1 distinguish between the treatment of our In- 
dian and white prisoners, a distinction which, until this 
debate, was never heal’d within the councils, nor known 
until the late Seminole war, in the practice of this na- 
tion, or of any of the numerous states of which it is com- 
posed. The doctrine that Ambnstier was not entitled 
to be regarded as a prisoner of war, because he had no 
commission from his own sovereign* would have equally 
applied, as the select committee have remarked, to the 
most distinguished officers of our revolution; men to 
whom tne venerable Congress of that day voted statues 
and monuments, a. id whom our enemy, in all the pride 
of his power, dared not but respect. Tne other doctrine 
of my honorable colleague, (Gen. Smyth) that Arnbris- 
ter had no commission from the Indian nation, to which 
he united his arms, is disproved by an authority, which 
he himself will admit; by the charge to which the prison- 
er plead guilty, and upon which, he was condemned to 
be shot by his prosecutor ; tiie charge of leading and 
com nanduig the Lower Creek Indians, in carrying on a 
' war against the United States — unless, indeed, it be con- 
tended, that he commanded, and led his forces without 
their consent. The crane of aiding, abetting, and com- 
forting them, on which the remaining charge was .ound- 
cd, is evidently merged in the heavier accusation to 
Which he plead guilty, and which he sought at least to 
justify. And if, sir, the war was defensive, on the part of 
those unhappy Indians, ajustification more complete in all* 
its parts, could net be well imagined. The benefit of 
that justification would alike extend to Arbuthnot, a 
mere trader in the usual subjects of Indian commerce, 
since they have laid down the. bow and arrow and resort- 
ed for subsistence, as well as security, to the musket 
and rifle, if he had not in fact discountenanced their re 
sista.'ice of a force that he saw must overwhelm them. 
Who, sir, were the other captives condemned to death 


m 


It has been said of one of the Suwaney chiefs, that he 
was the author of the massacre of Scott’s detachment, 
destroyed, as I have proved, in that Indian territory which 
our army was not only preparing’ to invade, but had, in 
tact, invaded ; and the participation of this chief in the 
bloody massacre which closed this scene, is unsustained 
by any proof whatever. 

As to his unfortunate comrade, the Indian Prophet, 
what are his imputed crimes ? That he was, himself, the 
victim of superstition ; that he deluded his wretched fol- 
lowers. Such was the guilt, sir, of all the augurs and 
soothsayers of the ancient republics, sometimes Prxtors, 
Consuls, and Dictators, not to Rome alone, but to a con- 
quered world. A guilt, in which lies still involved three- 
fourths of the human race ; many of whom yet groan, in 
cities, in palaces, and temples, beneath a superstition, 
compared with which, the religion of the wandering in- 
habitants of our western wilds is simple, peaceful, and 
consolatory. Or did his guilt consist, as has been inti- 
mated, in returning home with a foreign commission, after 
having’ crossed the Atlantic in quest of aid, to sustain the 
sinking fortune of his tribe ? Has it, then, become a crime, 
in our day, to love our country ; to plead her wrongs ; to 
maintain her rights; or to die in her defence ? Sir, had 
not the God I worship, a God of mercy as well as truth, 
taught me to forgive mine enemies, did he, as the Great 
Spirit whom the Seminole adores, allow me to indidge 
revenge ; were I an Indian, I would swear eternal hatred 
to your race. What crimes have they committed against 
us, that we have not, with superior skill, practised upon 
them ? Whither are they goner How many of them have 
been sent to untimely graves ! How many driven from 
their lawful possessions! Theirtribesand their very names 
are almost extinct. My honorable colleague, (Mr. Bar- 
bour), who differs from us on this question — my honor- 
able friend I will call him, for he inspired that sentiment, 
while he eloquently described the wrongs and sufferings 
of this unhappy race — will not condemn in a poor Semi- 
nole Indian that love of country, of which, if it be indeed 
a crime, no man is more guilty than himself. But it seems 
he was an Indian The Suwaney chief, his comrade, was 
so too. Arbuthnot and Ambrister, who inspired their 
counsels and led them to combat, are to be regarded as 
themselves, and, under the law of retaliation, they were 
all liable to suiter death, at the pleasure of General 
Jackson. And thus, Mr. Chairman, the clemency which 
has been observed, for two centuries, in all our con- 
flicts with the aborigines of America, is at length discow 


31 


ered to have been an impolitic abandonment of the rights 
which we derive from the laws and usages of war. Nay, 
sir, the victories of all our former commanders, in all 
other Indian wars, are cast into the shade, in order to 
magnify the effect of this new policy. In the hard-fought 
battle ofPoint Pleasant, in which,l have heard, that 300 Vir- 
ginians fell, my colleague, (General Smyth) tells us, that 
only 18 Indian warriors were found dead on the field. 
Before the impetuous charge of the gallant Wayne, but 
20 fell. At Tippacanoe, but 30. On the banks of the 
Tallaposoa, General Jackson left 800 Indians dead. Sir, 
it is consolatory to humanity to look beyond these fields of 
slaughter, to the peace which foil owed them, the onlyobject 
of a just war Fromthe battle of Point Pleasant to the pre- 
sent day, Indian hostilities have ceased in Virginia. The 
victories of Wayne led to the treaty of Greenville, Sc was 
followed by a peace of 18 years. The treaties of Hope- 
well, of N. York, and of Colerain, preceded by no battles, 
were succeeded by a peace, which, with the Creeks and 
Seminoles, it required, after the lapse of nineteen years, 
another British war to disturb ; and which, with the 
Choctaw and Chickasaw Indians, endures to this moment. 
While the splendid victory of Talapoosa, and the treaty 
of Fort Jackson, have not yet, it is said, secured to us peace, 
although aided by our new code of retaliation, and its 
practical commentary, the execution, in cold blood, of 
four Indian captives. 

Mr. chairman, it has been justly remarked, that the on- 
ly lawful end of retaliation is lost on an Indian foe. Death 
has no terrors for a North American savage. Hunting* 
and war are his delight. He hates labor. You may pu- 
nish him by requiring* him to construct another wig-wam, 
by laying waste his corn-fields, or destroying the fruits 
of his harvest. So far our retaliation has hitherto gone. 
And the peace which it has purchased, has evin- 
ced its efficacy. The Indian is as generous as he is brave. 
In our past intercourse we have sometimes conciliated 
his friendshipby presents ; and, by kindness, softened his 
ferocity. Why not persevere? With him revenge is 
lawful. By departing from the maxims observed in all 
former wars, we shall rival our savage foe in cruelty, 
without his apology to plead in its extenuation. 

I admit the power of a military commander to put Ills 
prisoners to death, but I deny his right. No man lias a 
right, derived from God or nature, to practice cruelty or 
injustice ; and all needless severity is both unjust and 
cruel. 

The law of nations sanctions no such pretensions. Two 
of our Indian treaties furnish a more correct exposition, 


of this law, than our adversaries have done. “It is tin 
‘ derstood, (said the old congress and their Indian allies'? 
c that the punishment of the innocent, under the idea of 
‘retaliation, is unjust.” “A nation, (says Vattel) may 
‘ punish another, which has done her an injury, if the 

* latter refuses to give her a just satisfaction ; but she has 

* not a right to extend the penalty beyond what her safe- 
‘ ty requires. Retaliation, which is unjust between private 
‘ persons* w ould be much more so, between nations ; because 
‘ it would, in the latter case, be difficult to make the pu- 
‘ nishment fall on those who had done the injury,” 

Wherever this humane w riter seems to contradict this 
doctrine, as when he sanctions the departure from the 
usages of civilized warfare, to retaliate on nations who 
disregard them, it is to bring those nations back to rea- 
son and conscience. If this be impossible, the retaliation 
is unjustifiable. 

Would you make slaves of Algerine captives because 
the Turks enslave their Christian prisoners ? Europe 
has never thus retaliated on the states of Barbary. How 
speedily w ould the practice of this doctrine replunge the 
world in barbarism. In refusing to wage war for re- 
venge, and blending- martial courtesy with valor, a nation 
advances her true glory That enemy is most to be 
dreaded, who conquers by his clemency as well as his 
sword. “ W T ho, though the lion in combat, the battle 

* once ended, has the heart of a lamb.” Such has ever 
been the character of an American soldier, and such, I 
trust, Mr. chairman, will continue to be the boast of our 
arms. 

How gratifying will it hereafter be to the feelings of 
this nation, in looking back on the course of this debate, 
when all its irritation shall have subsided, to perceive 
that the most laborious research into the past history of 
our country, from the first period at which our fathers 
landed on this continent, down to the late Seminole war,, 
has not been able to furnish a solitary example of the ex- 
ecution of an Indian captive, in cold blood. Usage is the 
best expositor of national law, and the usage of two cen- 
turies excludes this new law of retaliation from the hti' 
mane code of America. 

It has been urged by one of my honorable colleagues, 
(Gen. Smyth) to whose argument I have often had occa- 
sion to advert, in the course of this debate, that the glory 
of a nation consists of the fame of its great men. I had 
thought it more comprehensive. That it embraced all 
the blessings, moral and physical, with which the munifi- 
cence ofheaven has crowned the lot of any people. The 
extent of their territory, the salubrity of their elimafc, 


33 


t he fertility of their soil, The multitude and variety of its 
productions, the scenery of their country, its capacious 
bays, its noble rivers, its lofty mountains ; their com- 
merce, their arts of peace as well as of war, their man- 
ners, their customs, their institutions, their laws, their 
morality and piety, and the wide diffusion of their hap- 
piness. With us, sir, the security of all these blessings, 
that which stamps on them their durable value, is our ex- 
cellent constitution of government. This is the cement 
of our union, the spring of our commerce, the shield of 
our security, the pledge of our peace, the guardian of our 
freedom. Whatever other sources of distinction we may 
possess, they will be found to be contained, at last, in our 
liberty. From this source, distinguished men have doubt- 
less sprung, and will be multiplied in all future time. 
But let us not mistake the fruit for the tree ; and, attract- 
ed by the lustre of the one, leave the other to perish by 
neglect. 

In the progress of my argument, I perceive, Mr. chair- 
man, that I have anticipated my last proposition, and have 
removed, I trust, the necessity of offering any further rea- 
sons in support of the resolutions on your table. Of 
those which are immediately practical, one will, I hope, 
furnish an additional sanction to the acknowledged law 
of nations, which forbids a belligerent to enter a neutral 
territory, without permission, except in fresh pursuit of a 
flying enemy;& the other, which requires the assent ofthe 
president of the United States to sanction the execution 
of a prisoner of war, on the supposition that he may be 
tried by a court martial, extends the security for human 
life very little farther than the presentarticles ofwar. Fol- 
lowingthe American army everywhere, they now require 
that no judgment ofacourt martial, in time ofpeace, inflicting 
eapital punishment, shall be executed, until it has re- 
ceived the approbation of the President. 



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